Collins v. Christenberry

170 S.E.2d 515 (1969) 6 N.C. App. 504

Phillip Dean COLLINS
v.
Charles Walker CHRISTENBERRY.

No. 6925SC525.

Court of Appeals of North Carolina.

November 19, 1969.

Byrd, Byrd & Ervin, by Robert B. Byrd and John W. Ervin, Jr., Morganton, for plaintiff appellee.

Smathers & Ferrell, by James C. Smathers, Hickory and Larry W. Pitts, Newton, for defendant appellant.

FRANK M. PARKER, Judge.

On this appeal defendant concedes his own negligence but contends nonsuit should have been allowed on the ground that plaintiff was contributorily negligent as a matter of law. We do not agree.

It is elementary that nonsuit on the ground of plaintiff's contributory negligence is proper only if plaintiff's evidence, considered in the light most favorable to him, so clearly establishes his own negligence as one of the proximate causes of his injury that no other reasonable inference may be drawn therefrom. Anderson v. Carter, 272 N.C. 426, 158 S.E.2d 607; Black v. Wilkinson, 269 N.C. 689, 153 S.E.2d 333; Pruett v. Inman, 252 N.C. 520, 114 S.E.2d 360. Considering the plaintiff's evidence in the present case in the light most favorable to him, we agree with the trial court's conclusion that it does not so clearly establish negligence on his part as one of the proximate causes of his injury that no other reasonable inference may be drawn, and accordingly we hold the trial court was without error in overruling defendant's motion for nonsuit.

It was plaintiff's duty to assist his fellow officers in attempting to stop and apprehend the defendant. In performing that duty he was unavoidably subjected to great personal danger. The duty of a police officer frequently involves danger; such is the nature of his job. Therefore, we are not here concerned with any question as to whether plaintiff acted so as to avoid all risk of personal injury; if he performed his duty, he necessarily incurred some risk. While we agree with the statement contained in defendant's brief that there was "extreme danger involved in two vehicles touching or bumping each other at a speed of 100 miles per hour," this extreme danger was primarily of defendant's creation. Given plaintiff's obligation to attempt to stop the defendant, the setting up of a "running roadblock" may have been the safest method which he could pursue. The only question is whether in performing his duty he exercised such care for his own safety as a prudent man would have exercised in the discharge of official duties of a like nature under like circumstances. As stated in 60A C.J.S. Motor Vehicles § 375, p. 708, the true rule is that "the standard of care which the law requires is the same for drivers of police vehicles as for drivers of ordinary vehicles, the standard being such care as a prudent man would exercise in the discharge of official duties of a like nature under like circumstances." In the present case it was for the jury to determine whether plaintiff exercised such care as a prudent man would exercise in the discharge of official duties of a like nature under like circumstances. Certainly plaintiff's evidence does not so clearly establish his own negligence that no other reasonable inference may be drawn therefrom.

Defendant, however, contends that in setting up the "running roadblock," plaintiff violated the provisions of G.S. § 20-151 and was therefore guilty of negligence per se. G.S. § 20-151 in pertinent part provides:

"The driver of a vehicle about to be overtaken and passed by another vehicle approaching from the rear shall * * * give way to the right in favor of the overtaking vehicle on suitable and audiable signal being given by the driver of the overtaking vehicle. * * *"

In support of his contention, defendant points to G.S. § 20-145, which provides that statutory speed limitations "shall not apply to vehicles when operated with due regard for safety under the direction of the police in the chase or apprehension of violators of the law," and contends that since there is no similar express statutory exemption from the requirements of G.S. § 20-151, this latter statute was applicable to the plaintiff under the circumstances of this case. We do not agree, however, with defendant's basic assumption that the Legislature, by including the express exemption for police vehicles when operated with due regard for safety in G.S. § 20-145, thereby evidenced an intent that there be no exemption under any circumstances from other sections of the Motor Vehicle Act for police vehicles while being similarly operated. Adoption of defendant's assumption is required neither by reason nor authority and would unnecessarily hinder the State Highway Patrol in performance of its duties. By G.S. § 20-188 the Patrol is directed to "enforce all laws and regulations respecting travel and use of vehicles upon the highways of the State." Imposition of this duty implies the right to employ reasonable means in a reasonable manner in fulfilling it. For example, there is no express exemption for police vehicles from the provisions of G.S. § 20-161, which prohibits parking on the main traveled portion of any highway, just as there is no express exemption for police vehicles from the provisions of G.S. § 20-151, which requires the driver of a vehicle about to be overtaken to yield the right-of-way. Nevertheless, as the facts in the present case illustrate, erection of some type of roadblock, whether stationary or running, may be the only practical method of stopping a determined and reckless lawbreaker. Under such circumstances exemption for police vehicles from G.S. § 20-161 (in case of a stationary roadblock) or from G.S. § 20-151 (in case of a running roadblock), may be reasonably implied.

In Goddard v. Williams, 251 N.C. 128, 110 S.E.2d 820, Denny, J. (later C. J.), quoted with approval from Edberg v. Johnson, 149 Minn. 395, 184 N.W. 12, as follows:

"We do not hold that an officer, when in pursuit of a lawbreaker, is under no obligation to exercise a reasonable degree of care to avoid injury to other who may be on the public roads and streets. What we do hold is that, when so engaged, he is not to be deemed negligent merely because he fails to observe the requirements of the Motor Vehicle Act. His conduct is to be examined and tested by another standard. He is required to observe the care which a reasonably prudent man would exercise in the discharge of official duties of a like nature under like circumstances."

In our opinion, this is a correct statement of the law applicable to the present case.

Defendant also assigns as error the court's action in sustaining objections to certain questions asked of the plaintiff on cross-examination. On cross-examining the plaintiff, defendant's counsel asked if he had knowledge of the statute requiring the operator of a motor vehicle to yield to faster moving traffic, if he knew there would be danger to other slower traffic at the speed he was traveling, and if he knew of any Highway Patrol rule ordering him to set up a running roadblock. Out of the hearing of the jury, plaintiff answered that he was familiar with the statute requiring slower moving traffic to yield, that he could see the road in front of him for over a mile and it was clear of any traffic, and that the Patrol is taught the procedure for setting up a running roadblock but he did not know if there was any law providing for it. Defendant suffered no prejudicial error when the court sustained the objections to his questions and excluded the answers from the jury. Defendant's able counsel was not unduly restricted in his cross-examination of the plaintiff and was not prevented from developing fully all facts supporting his theory of the law applicable in this case. In his assignments of error directed to the court's rulings sustaining objections to his questions referred to above, we find no prejudicial error.

We have also carefully examined defendant's assignments of error based on his exceptions to portions of the trial court's charge to the jury, and find that the court correctly instructed the jury as to the standard of care required of a police officer while engaged in discharge of his official duties consistent with the standard approved by our Supreme Court in Goddard v. Williams, supra, and with our holding above. In the charge as a whole we find no error prejudicial to defendant.

In the trial we find

No error.

CAMPBELL and GRAHAM, JJ., concur.